Ali Nelson

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On August 21, 2018, the Environmental Protection Agency (EPA) released a prepublication copy of its proposed Affordable Clean Energy (ACE) rule. If adopted, the rule would (1) establish emission guidelines for greenhouse gas emissions from existing electric utility generating units (EGUs); (2) revise the regulations governing how states implement the emission guidelines; and (3) revise the New Source Review (NSR) program to allow modification to existing EGUs without triggering permitting requirements.

The Clean Power Plan regulations adopted by the Obama administration would have limited GHG emissions by directing states to reduce emissions by applying a combination of three “building blocks” as the best system of emission reduction (BSER), which consisted of:

1)    Improving heat rate at affected coal-fired steam generating units;

2)    Substituting increased generation from lower-emitting natural gas combined cycle units for decreased generation from higher-emitting affected steam generating units; and

3)    Substituting increased generation from new zero-emitting renewable energy generating capacity for decreased generation from affected fossil fuel-fired generating units.

U.S. Environmental Protection Agency’s January 25 change to its “once in always in” policy will allow facilities that have historically been regulated as “major sources” of hazardous air pollutants to be reclassified as “area” sources if they have reduced their potential to emit to below major source thresholds. This is important because companies that are…

On January 25, 2018, the U.S. Environmental Protection Agency (“EPA”) withdrew its 1995 “once in always in” guidance. Under that guidance, facilities classified as “major sources” of hazardous air pollutants (“HAP”) as of the “first compliance date” of a maximum achievable control technology (“MACT”) standard under Section 112 of the Clean Air Act are required to comply permanently with the MACT standard. Now, EPA’s current policy is that a major source that limits its potential to emit (“PTE”) to below major source thresholds can become an area source and will no longer be subject to the major source MACT.

The Clean Air Act defines “major source” as “any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit considering controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants.” This definition expressly allows PTE to be calculated “considering controls,” and does not address the timing for when a source will be classified as a major source. As a result, EPA found that its “once in always in” policy “created an artificial time limit” contrary to the plain language of the Clean Air Act and must be withdrawn.

On December 18, 2017, EPA Administrator Scott Pruitt signed an advanced notice of proposed rulemaking (“ANPRM”) to solicit input regarding the emissions guidelines limiting greenhouse gas (“GHG”) emissions from existing electric utility generating units (“EGUs”) that the U.S. Environmental Protection Agency (“USEPA”) is considering proposing.

The Clean Power Plan regulations adopted by the Obama administration would have limited GHG emissions by substituting generation from lower-emitting existing natural gas combined cycle units and zero-emitting renewable energy generating capacity.

On October 24, 2017, the Department of the Interior (“Interior”) filed its final report summarizing its review of Interior actions that potentially burden the development or use of energy produced in the United States. The review and resulting report were required by President Trump’s Executive Order 13783, which instructs the agencies to pay “particular attention” to any actions that delay or impose additional costs on oil, natural gas, coal, and nuclear energy resources.

As anticipated, on October 10 the EPA signed a proposed rule to repeal the Clean Power Plan rules for existing stationary sources. The proposed rule concludes that the Clean Power Plan exceeds EPA’s authority under Section 111(d) of the Clean Air Act by regulating emissions by (among other approaches) substituting generation from lower-emitting existing natural gas combined cycle units and zero-emitting renewable energy generating capacity.

Rather, EPA has now determined that

EPA Administrator Scott Pruitt has announced his intention to act today to sign a proposed rule that would “withdraw the so-called Clean Power Plan of the past administration.” This move by the agency is no surprise, given President Trump’s campaign promises to bring back coal and Pruitt’s lawsuit challenging the rule filed in his capacity as the Oklahoma Attorney General.

The goal of the Clean Power Plan rules is to significantly limit

NOTE: An earlier draft of this update indicating that the FAA policy was still under consideration was inadvertently published last week. That draft was out of date and should not be relied on as a statement of FAA policies currently under consideration.

Changes to a Federal Aviation Administration (FAA) policy concerning the issuance of Determinations of No Hazard to Air Navigation (DNHs) under discussion late last year would have had profound and potentially adverse repercussions on wind development projects nationwide. Fortunately,